Headrick v. Yount , 22 Kan. 344 ( 1879 )

The opinion of the court was delivered by

Valentine, J.:

The only question of any importance presented in this case is, whether the petition in the court below sets forth facts sufficient to constitute a cause of action. The question was raised by the defendant in the court below, first, by a demurrer to the petition; and secondly, by objecting to the introduction of any evidence under it. Peter Yount was the plaintiff in the court below, and John Headrick, administrator of the estate of William T. Kirby, deceased, was the defendant. The plaintiff alleged in his said petition the following facts, to wit: John Headrick was the administrator of the estate of William T. Kirby, deceased, and as such administrator and under an order of the probate court, sold to the plaintiff a certain piece of land as the property of said estate, but which land did not in fact belong to the estate — the plaintiff agreeing to pay for the land $600, of which amount he in fact paid $400. The probate court confirmed said sale, and ordered the administrator to execute a deed to the plaintiff for the land, and also ordered him to hold said $400 subject to its further order. Afterward, the administrator executed and delivered to the plaintiff a deed for the premises. The “plaintiff further alleges, that by reason of his placing undue confidence in the proceedings aforesaid, and the solemn judgment of the honorable probate court thereon, he was induced to purchase said land as aforesaid, under a misplaced confidence in the belief that upon the entry thereof as aforesaid by the said administrator [that is, the entry of the land for the heirs at the U. S. land office by the administrator], the same would become part and parcel of said estate.” Afterward, the plaintiff and his wife executed a deed for said land, reconveying the land to the administrator, and then tendered the deed to him, and requested of him a return of said $400, but he refused. The plaintiff prayed in his petition for a judgment for said $400, and for such other and further relief as he might be entitled to in equity.

We think the plaintiff’s petition was insufficient, and therefore that the court below erred in overruling the defendant’s demurrer thereto, and also erred in overruling the defendant’s objection to the introduction of any evidence under it. A person purchasing at an administrator’s sale (in the absence of fraud) purchases at his own risk. The rule of caveat emptor applies in all its rigor. And besides, the mistake made in the presént case was a mistake of law, and not a mistake of fact. The plaintiff shows by his petition that he had full knowledge of all the facts with reference to the title to said land, and yet he purchased it because of a mistaken confidence in the validity of the probate court proceedings ordering it to be sold, and in the effect of the administrator’s entry of the land at the United States land office. No warranty was alleged, and no fraud or deceit was charged or imputed to any one. And the plaintiff not only purchased the land with a full knowledge of all the facts, and paid $400 of the purchase-money, but he then waited until the sale was confirmed, and the deed executed and delivered to him, before he made any objection to the sale, or resorted to any remedy for his unfortunate purchase. Under such circumstances, we think he has no remedy. The plaintiff still owes $200 on said sale. Probably he could defeat an action against him for that amount, on the ground of a total failure of consideration. Perhaps, also, that at any time before the administrator’s deed was finally executed and delivered to the plaintiff, the plaintiff might have had a remedy for the $400 paid by him, by making a motion in the probate court, upon proper notice to the administrator, to set aside said sale on the ground of a total failure of title to the land; for, up to the final execution and delivery of the deed, the sale might be said in one sense not to have been fully completed, and the probate court, up to that time, would have had full power in the premises. Generally, however, where any person pays money, having full knowledge of all the facts which would show that he is not bound to pay the same, or that he receives no consideration therefor, he is presumed to give, and has no action to recover the money back, and this is especially true where he allows the whole transaction to be completed before he takes any steps to recover his money.

With reference to the evidence, we would say, that all the evidence was objected to on the ground that the petition below did not state facts sufficient to constitute a cause of action —on the ground that the petition did not authorize the introduction of any evidence. If, therefore, any evidence not authorized by the petition, nor by any of the allegations thereof, but necessary for the plaintiff to make out a case, was introduced by the plaintiff for the purpose of making out a case, the introduction of such evidence was additional error.

The defendant in error, however, claims that all errors have been waived, and that the plaintiff in error is estopped from setting up any errors, upon the following grounds, to wit: After the judgment was rendered in this case against the administrator, he made a final settlement with the probate court, and was not charged by it with said $400 received of the- plaintiff below, but was allowed to retain the same, and was finally discharged. Considerable confusion has existed in the argument of this case as to whether the action was brought and prosecuted, and the judgment rendered therein against the defendant below, as the administrator of Kirby’s estate, or against him personally. The defendant in error, who raises this question in this court, claims that the judgment was rendered against the defendant below personally, and therefore we shall decide this question upon that theory, without expressing any opinion ourselves as to whether such theory is correct or not. We do not think that any error has been waived or cured by said proceedings in the probate court, or by any other proceedings. The defendant (plaintiff in error) has done nothing in this case, or affecting the case, since the judgment was rendered therein against him, except to bring the case to this court, and to prosecute this petition in error. The proceedings in the probate court did not affect the status of this case, nor was the defendant in error a party to such proceedings. Nothing has transpired between the plaintiff and the defendant by which the defendant has ratified or acquiesced in the judgment. Nor has the'defendant received any benefits under or by virtue of the judgment, for the judgment did not award to him any benefits; and he has not paid, or in any manner complied with, any of the requirements of the judgment. If this judgment was rendered against the defendant in his representative capacity as administrator, we should still hold that no error committed by the district court was cured or waived by the proceedings in the probate court; but then the question would arise, Is this petition in error prosecuted by the right person? Upon this question we need not express any opinion.

The judgment of the court below will be reversed, and cause remanded for further proceedings.

All the Justices concurring.